CH. MUSHTAQ AHMAD KHAN, J.-Briefly stated facts of the case out of which this civil revision has arisen are that according to the plaint, the petitioner and the respondent No. 1 were claimant/allottees of Shop No. B.I.2-R/105-A, Saddar Bazar, Okara. A PTO was issued in their name jointly on 26.11.1959. Thereafter, a litigation started between the petitioner and the defendant on the one side and Tassadiq Hussain and his wife on the other side. This litigation was jointly prosecuted successfully but thereafter a PTD was issued in the name of the petitioner alone. The respondent No.2 who was excluded filed an application before the Settlement Authorities for the cancellation of the PTD and for issuance of PTD in his name as well as according to him, a fraud has been committed and his name has been illegally got included. This application was rejected by the Deputy Settlement Commissioner vide order dated 9.2.1976. This order was challenged by the respondent No.1 in a writ petition filed against this order which was dismissed vide order dated 11.5.1976 with the observations that the respondent No.1 should file a civil suit against the petitioner.
Thereafter, he filed a title suit in the civil court of Okara, alleging therein the PTD issued in favour of the petitioner who was a defendant in the suit was based on the fraud and that he was the joint owner in the property in question and he has never executed any deed of surrender on 25.11.1960, in favour of the defendant nor the same was ever verified in accordance with law and therefore the PTD issued by the Settlement authorities in favour defendant alone is liable to be cancelled and that he is entitled to be declared as a co-owner in the property to the extent of 1/2 share. This suit has been contested by the petitioner on the grounds that the plaintiff respondent No.1 had surrendered bis rights vide deed of surrender dated 25.11.1960 in favour of the defendant which was executed by him with his free consent and therefore PTD issued in favour of the defendant is not challengable in the civil court and further that it is not a result of fraud. It is pleaded in the written statement that the plaintiff is estopped to file the suit. On the basis of the pleadings of the parties', learned trial Court settled the following issues:-
(1) Whether the plaintiff is owner in disputed property along with the defendant in equal share and PTD dated 24.4.1969 is result of fraud; without jurisdiction, having no effect, upon rights of the plaintiff.
(2) Whether the civil court has got no jurisdiction..
(3) Whether the suit is not maintainable in its present form.
(4) Whether the plaintiff is estopped by his conduct.
(5) Whether the suit is improperly valued for the purposes of court-fee? r If not, what is the proper valuation. OPP.
(6) Whether the suit is bad for laches.
(7) Whether the suit is within time.
(8) Whether the suit is bad for misjoinder and non-joinder of the parties.
(9) Whether the suit cannot proceed in view of preliminary objections No. 1 and 9 of the written statement.
(10) Relief. ' and vide judgment and decree dated 3.11.1986 decreed the suit filed by the respondent No.1.
Aggrieved by this judgment and decree, the petitioner filed regular second appeal in District Court Okara, which has been dismissed by the learned Additional District Judge, Okara vide judgment and decree dated 20.7.1987. Both the learned courts below have concurrently held that the plaintiff is co-owner in the shop in question and that the PTD issued on 24.4.1969 as a result of fraud and same is without jurisdiction hence is not binding upon the ownership rights of the plaintiff. The two learned courts below further held th#t the execution of the alleged deed of surrender Ex. D.2 has not been proved- inasmuch as neither the scribe nor the marginal witness of the document has been produced in evidence. Learned two courts below further held that there is absolutely no proof of payment of Rs. 2,000 as a consideration for execution of the deed as mentioned in the said document. Aggrieved by both the judgments and decree passed by the two learned courts below, the defendant has filed the present civil revision.
2. Khawaja Ghulam Qadir, Advocate, has appeared on behalf of the petitioner whereas Mr. Shahzad Shaukat, Advocate, has appeared on behalf of respondent No.1, whereas Rana Muhammad Arshad, learned Addl. Advocate- General, Punjab has appeared on behalf of respondent No.2. Mr. Hamid Ali Mirza Advocate, has appeared on behalf of respondent No.3.
Learned counsel for the petitioner has placed on record the original deed of surrender today and has argued that it clearly proves that the respondent No.1 did execute the deed of surrender in favour of the petitioner which must have been verified in accordance with law and therefore the findings recorded by the two learned courts below are incorrect and are based upon wrong appreciation of evidence produced in this case. Learned counsel has emphasized that the deed should be confronted to the respondent No.1 who did not dare to appear in the witness box and only his son appeared and for this purpose case should be remanded. Learned counsel further argued that the suit was filed after a very long time which fact is sufficient to prove that the plaintiff had executed the deed of surrender with his own consent and that the stand taken by the plaintiff in this suit is incorrect and that his conduct is a sufficient evidence to the effect that he must have executed the surrender deed and as well as the said deed must have been verified in accordance with law. Learned counsel has stated that during those days when the deed was executed and verified it was all chaos in the settlement department and nobody bothered to act strictly in accordance with law and therefore even if the verification of the deed in question has not been proved on record, it will not make any difference and t ho mere fact that the respondent No.1 himself purchased the stamp paper and Signed the deed of surrender will be sufficient compliance for making the deed of surrender as legally valid documents on the basis whereof PTD has rightly been issued in favour of the petitioner. Learned counsel argued that the petitioner has suffered a great loss. He has paid Rs.2,000 and even the rent note is in his name and therefore if the civil revision is not accepted, he will suffer a great loss inasmuch as he has been coming from and going to Okara for the last so many years in connection with this case. I have asked the learned counsel as to why the original deed of surrender was not produced before the Settlement authorities, learned counsel states that a photostat copy may have been produced before the Settlement authorities and the original deed of surrender may have been retained by the petitioner or it may be a duplicate document which has been placed by the learned counsel before this court today. I have asked the learned counsel was it not necessary that the deed of surrender even if validly executed must have been got verified in accordance with law, otherwise, it shall be nullity in the eyes of law, learned counsel states that legally this is the position yet in view of the chaotic conditions prevailing in the office of the Settlement authorities during those days, formalities of verification in accordance with law will not nullify the deed of surrender. I have asked the learned counsel that he should point out any misreading or non-reading of evidence by the two learned courts below, while recording the finding of fact on the merits of the case, particularly, on the issue of execution and verification of the deed of surrender but the learned counsel has stated that it is a case of wrong appreciation of evidence and he is not in a position to point out any misreading or non-reading of evidence on the record.
3. As against the above arguments addressed by the learned counsel for the petitioner, Mr. Shahzad Shaukat, Advocate, who has appeared for the respondent No.1 has argued that a concurrent finding of fact cannot be interfered with in exercise of the revisional jurisdiction of this Court inasmuch as no misreading/non-reading of evidence has been pointed out by the learned counsel for the petitioner and further that the execution of the document Ex. D2 which is a copy of a photostat copy placed on record of the settlement department is inadmissible and has to be excluded from consideration inasmuch as neither the scribe nor the marginal witness has been produced to prove the execution of the private document and therefore the finding of fact recorded by the two learned courts below witherwards to the execution of the document which is alleged to be a deed of surrender is unexceptionable. learned counsel for the respondent has further argued that there is absolutely nothing on the record to show that the alleged deed of surrender was verified and accepted after issuing any notice to the respondent No.1 and recording of his statement therefore the said deed is the nullity in the eyes of law and on the basis thereof the PTD could not have been issued in favour of the petitioner alone hence the two learned courts below have rightly decreed the suit filed by the. Petitioner. In support of his contentions referred to above, learned counsel has cited the following judgments in cases of Muhammad Shafi vs. Settlement Commissioner and another (PLD 1979 Lahore 790) Nabi Ahmad Shah vs. Mirwaiz Mohammad Abdullah and others (1976 SCM R 132), Mst. Fatima Bibi and 7 others vs. Settlement Commissioner, Lahore and three others (PLD 1973 Note 23 at page 34) and Mst.Hafizan Begum and, six others vs. Settlement Comm., Lahore and two others (PLD 1974 Note 17 at page 51).
4. I have considered the arguments addressed by both the> learned counsel for the parties, have also gone through the record and the case-law cited at the Bar. Admittedly there is a concurrent finding of fact recorded by the two learned courts below that a document Ex. D2 which is alleged to be a deed of surrender is not proved to have been executed by the defendant-respondent. This finding is based upon lawful and valid reasons, particularly on the ground that neither the scribe nor the marginal witness has been produced in proof of the execution of the said deed, which is a private document and execution whereof had to be proved by examining the scribe as well as the attesting witness and this having not been done the document shall be deemed to have not been proved and hence has rightly been excluded by the two learned courts.
Even otherwise, the original document has been placed on record by the petitioner today, it appears that this documents was never placed before the Settlement authorities and therefore the original deed of surrender being not before the Settlement authorities, no proceedings for verification of the same could have been taken by the Settlement authorities. Hence there is absoutely no evidence on the record to prove that the respondent No.1 executed any deed of surrender in favour of the petitioner.
There is a force in the arguments addressed by the learned counsel for the respondent No.1 that the alleged deed of surrender of rights in the shop having not been verified and accepted after the notice and recording the statement of the respondent No.1, the said deed of surrender shall have no value and therefore the PTD could not have been issued in favour of the petitioner alone. This view finds support from the law declared in judgments cited by the learned counsel for the respondent referred to above. Arguments of the learned counsel for the petitioner to the effect that there were chaotic conditions in the settlement department during those days, failure to follow correct procedure, by the Settlement authorities while accepting the deed of surrender will not make any difference, is also misconceived. Firstly there were no chaotic conditions in the settlement department and there are many deeds of surrender which have been verified in accordance with law and secondly it is not a ground for accepting the alleged deed of surrender as a valid documents merely because according to the supposed contention of the learned counsel for the petitioner, the procedure was not adapted by the Settlement authorities. There is absolutely no evidence on the record of the case to the above effect. -Therefore, as an act has to be done as provided and not otherwise, the argument being without any lawful basis and justification, is repelled. Argument of the learned counsel for the petitioner that as,, for a long time, the suit was not filed hence the suit is incompetent has also no forte inasmuch as the findings of the two learned courts below are that the 1 document was n&vcr executed by the respondent No.1.
Having coming to know of the document he immediately filed an .Application before the settlement department and thereafter filed a civil suit in pursuance of the observation made in writ petition by this court, consequently, it cannot be said that the respondent No.1 is estopped to challenge the execution and legality of the alleged deed of surrender as well as the PTD which was issued in favour of the petitioner alone, merely for the reasons that he filed the suit after a long time. Even otherwise, the alleged deed of surrender being nullity in the eyes of law, the respondent No.1 shall be deemed to be the joint owner of the shop in question and no period of limitation shall deprive him of his lawful rights in the property in question. Last limb of the arguments of the learned counsel for the petitioner is also without any basis and at any rate cannot be given any weight merely because the petitioner has been litigating for so many years and has been coming and going to Okara in connection with the prosecution of the litigation as it is not a legal ground to accept the civil revision. Learned counsel has not been able to point out any misreading or non- reading of evidence nor is there any legal infirmity in the judgments rendered by the two learned courts below. Learned counsel in fact has not been able to make out a case even of wrong appreciation of the evidence. The two learned courts below have recorded very cogent reasons for decreeing the suit and have relied upon the circumstantial as well as the evidence on record for coming to the conclusion that neither the deed is proved to have been executed nor the alleged deed of surrender was ever verified in accordance with law. Production of the original deed of surrender today by the petitioner in court also makes the whole matter doubtful and fishy. If the deed of surrender was placed before the settlement department, how it is in possession of the petitioner till today and if a photostat copy thereof was produced for verification and acceptance, the Settlement authorities could not have acted thereupon, consequently, the findings recorded by the two learned courts below on the question of execution of the alleged deed of surrender are lawful and cannot be interfered with. Judgments and decree passed by the two learned courts below are lawful and are maintainable. I have asked the learned counsel for respondent No.1 to nay an amount of Rs.2000 to the petitioner in the interest of justice, whether, the petitioner has received this amount or not, learned counsel has argued a matter of grace to pay this amount to the petitioner. Learned counsel for the petitioner, however, is not satisfied with this payment and has stated that respondent N6.1 should pay him the full price of the half share of the shop in question.
This demand of the petitioner is unreasonable and at any rate is not acceptable to the learned counsel for the petitioner who is still ready to show grace and to pay an amount of Rs.2,000 to the petitioner without conceding the execution of the deed of, surrender as well as the receipt of the aforementioned amount from the petitioner. This amount learned counsel has clarified, is being paid to the petitioner in the interest of justice and as an act of goodwill which may result in cessation of litigation between the parties pending since long.
In view of the above, I see no force in this civil revision, the same is dismissed, however, respondent No.1 shall deposit an amount of Rs.2,000 in the court of learned Civil Judge, Okara within a period of one month with effect from today. The petitioner shall be entitled to withdraw this amount from the said court. The parties arc left to bear their own costs.